United States v. Kevin Brewer
2014 U.S. App. LEXIS 17454
| 8th Cir. | 2014Background
- Brewer was convicted of failing to register as a sex offender under 18 U.S.C. § 2250(a) and sentenced to prison and supervised release.
- SORNA created a national sex-offender registry and its applicability to pre-Act offenders depended on the Attorney General’s rulemaking.
- Interim Rule (Feb. 28, 2007) made pre-Act offenders subject to SORNA before final rule; it bypassed notice and comment and publication requirements.
- Supreme Court Reynolds held SORNA’s registration applies to pre-Act offenders only after AG rulemaker specifies applicability.
- Brewer moved to vacate under 28 U.S.C. § 2255; district court denied; court certified two APA/nondelegation issues for appeal.
- Court reverses and remands to vacate Brewer’s conviction because the Interim Rule lacked good cause and violated APA procedural requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there good cause to bypass APA procedures for the Interim Rule? | Brewer: no good cause. | Government: there was good cause to act immediately. | No good cause; APA violation; Brewer wins on issue. |
| Does the challenge raise nondelegation concerns about SORNA as applied to pre-Act offenders? | Brewer: violates nondelegation. | Government: consistent with circuit precedent. | Not reached; remand on issue 1 makes it unnecessary to decide. |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (2012) (rejected immediate pre-Act applicability for pre-Act offenders without AG rulemaking)
- United States v. Knutson, 680 F.3d 1021 (8th Cir. 2012) (interprets SMART Guidelines and retroactivity context)
- United States v. Reynolds (Reynolds II), 710 F.3d 498 (3d Cir. 2013) (agencies must show substantial good cause for bypassing notice and comment)